Court grants compensation for Council’s attempt to evict family for attic extension

The High Court has found that a local council breached the constitutional and European Convention rights of a family when it attempted to evict them for building an extension in their attic.

John and Gayle Brady are joint tenants of a Wicklow Council house in Bray, where they live with their five children. In 2004 the couple decided to do an attic conversion to accommodate their growing family.

Mrs Brady visited the Bray Town Council offices and asked if the Council would finance the extension. She was told that the Council would not but, as she averred, it was indicated that “we could carry out the conversion from our own finances”.

The couple therefore saved money and took a loan from the local credit union, and the extension was completed by the end of 2004.

The Court noted from the beginning that it believed that Mrs Brady’s version of events was correct, and that she had obtained oral consent for the work to go ahead.

The Court observed that the entirety of the Council’s case would seem to fall at this hurdle, quoting Corrigan v. The Irish Land Commission  I.R. 317, 326, the Court noted that “The complainant  cannot blow hot and cold; he cannot approbate and then reprobate; he cannot have it both ways”

Leaving that issue aside for the moment, the Court continued with the chronology of events.

In 2013, the Council conducted an impromptu inspection of the house.

Due to Mr Brady’s status as a Sinn Féin member of the council, as well as a number of vocal criticisms he had made about the Council, and an ongoing spat between himself and the Council due to its unusual decision to deduct money from his expenses following a ‘sit-in’ he had arranged on the Council’s premises, the Bradys were mistrustful of the Council. As a result, Mrs Brady took the precaution of recording the visit on her mobile phone.

Despite the inspection only lasting four minutes, the Council then wrote a comprehensive letter to Mr and Mrs Brady, averring that there was an absence of fire doors, and an inadequate escape route from the attic. It also averred that they had not obtained permission.

This letter kick-started a chain of correspondence and events, which culminated in the Council ordering the Brady family’s eviction, and the commencement of the judicial review proceedings.

The reliefs sought by Mr and Mrs Brady were (i) relief on grounds of irrationality, unreasonableness and disproportionality; (ii) bad faith (misfeasance) on the part of the Council; (iii) breach of the Bradys’ constitutional rights and/or their rights under the European Convention on Human Rights; and (iv) damages arising from (ii) and/or (iii).

In relation to the first relief, the Court observed that judicial review was limited to determining whether decisions were legal, not whether they were correct (Bailey v. Flood (Unreported, High Court, Morris P., 6th March, 2000)), and that the test for reasonableness/rationality was “whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense” (State (Keegan) v. Stardust Compensation Tribunal).

The Court noted that there was a relatively limited role for the Courts, and that this was due to the inherent want of democratic legitimacy within judicial review. Thus, “legality of process, not likeability of decisions, must be the courts’ constant focus in this regard.”

While acknowledging this need for caution, however, the Court found that the actions of the Council presented with manifold deficiencies, and that the Council’s actions displayed unreasonableness, fundamental errors, disproportionality, and breaches of the family’s entitlement to respect for their family home under Article 40.5 of the Constitution and Article 8 of the European Convention on Human Rights.

In relation to the second relief, the Court noted that bad faith related to wrongdoing as opposed to recklessness, that it was not an assertion that should be made lightly, that the burden of proof was very high in such cases, and that the Court should be slow to infer bad faith.

In the present case, the Court found that while the Council’s actions were tainted with “unreasonableness, disproportionality and, to a limited extent, perhaps even by some degree of irrationality” there was no evidence of bath faith or misfeasance.

In relation to the third relief, the Court reviewed relevant case law from the European Court and Ireland, and observed that “the Council did not at any time address the issue of whether (i) the issuance of the notice to quit, or (ii) its subsequent refusal to revoke the notice to quit, constituted a disproportionate interference with the Bradys’ rights under Art. 8 of the European Convention on Human Rights. It appears to this Court that (a) in the absence of an independent body or person (within or without the Council) to determine the said issue of proportionality, and (b) in the absence of any such determination, the Council has not acted in compliance with Art. 8 of the Convention in the case now presenting.”

In relation to the fourth, the Court found that there had been a disproportionate intrusion upon the right of the Bradys under Article 40.5 to the inviolability of their home.

Concluding, the Court found “a significant breach of constitutional and Convention rights to have arisen that has significantly impacted upon the home life of the Bradys. This being so, the court considers it appropriate that it order that damages in the amount of €3,000 be paid by the Council to each of Mr and Mrs Brady.”

  • by Rachel Killean for Irish Legal News